Upon his return to work in November, it was not disputed that Andrews "was having a hard time of it"; he was limping and complaining (T., pp. 38, 39, 71).
During this period, on February 21, 1964, while working on defendant's towboat, due to the negligence of Captain Woods who was maneuvering the vessel and the tow out of the Emsworth Lock, the face wire slipped off a kevel and struck and fractured the thumb of Andrews' left hand. He reported the injury to Captain Woods, who negligently failed to send him for proper medical attention until the next morning. Again, no specialized medical care was given him for his vascular disease, and he was permitted to return home to Cambridge Springs with his hand in a cast.
Maintenance at the rate of $47.50 per week was paid for four weeks.
He was again permitted to return to heavy work as a deckhand in April, 1964, but was wrongfully discharged on June 2, 1964, after reporting sick with a virus.
Mr. Andrews became totally and permanently disabled several months after he was discharged in that his vascular disease had so progressed that he was unable to do any labor. The jury could have found from the medical testimony that the two injuries aggravated his disease; that the failure to furnish specialized medical care after each injury aggravated his disease; that permitting him to engage in heavy labor aggravated his disease; that the effect of defendant's negligences, singly and cumulatively aggravated his disease, caused him to lose wages until the time of trial and hastened his total disability (T., pp. 328, 331).
Dr. Sherman testified that there was a causal connection between the injury to plaintiff's foot and his total and permanent disability which this doctor found on his examinations of March 3, 1966 and May 20, 1967, and that the two injuries probably aggravated his condition and produced the disability. (See, for example, T., pp. 234, 238-241, 266, 303-307, 316, 318.)
Dr. Wolfe testified that he examined Mr. Andrews on two occasions and that the injuries sustained by Mr. Andrews aggravated his preexisting arterial disease; that he is totally and permanently disabled; and that this condition was hastened by the injuries. (See, for example, T., pp. 323, 325-326, 328, 331, 347-348.)
There was medical testimony that after the toe injury, the plaintiff should have had proper medical attention and should not have been permitted to work as a deckhand (T., pp. 246, 300, 358-359); Dr. Wolfe stated that if the patient had been given proper early treatment and had not sustained any injury, he could have performed work of a less dangerous nature (T., p. 360).
In addition to the medical opinions that the two injuries aggravated Andrews' condition and prematurely caused his total disability, there was medical opinion that there were curative techniques for impaired circulation known to medical science (T., pp. 282, 326-328).
It seems certain that arteriosclerosis is an incurable disease, but there was evidence that the effects of the disease upon the two injuries were cured by medical treatment; also the arterial blockages of the left and the right common iliac arteries, which occurred after plaintiff's discharge, were relieved by surgical operations; and his heart attack was relieved by medical treatment.
The defendant's briefs urgently point to statements elicited from the medical witnesses on cross-examination which it interprets as inconsistent with their opinions favorable to plaintiff. We think these inconsistencies, if they were such, were for the jury.
Where the evidence is conflicting and there is an issue for the jury, judgment n.o.v. should be denied.
Andrews was employed as a seaman on defendant's ships for 15 years; since his vascular disease occurred during his service, we think defendant is liable for maintenance and cure until the point of maximum cure was reached. The defendant contends that plaintiff did not prove he maintained himself during those periods. There was evidence that plaintiff supported his mother and invalid sister; that when his income stopped, he continued to board and room with his mother paying her out of his insurance money and when that ran out, he incurred an obligation to pay her for his maintenance (T., pp. 112, 414-415, 417). We think there was sufficient proof in this respect to deny the motion for judgment n.o.v. as to maintenance and cure.
The defendant assigns 11 reasons for a new trial as to the liability claims and 7 reasons for a new trial as to the maintenance and cure claim. We do not find merit in any of them.
We think plaintiff was entitled to the adverse interest charge with respect to defendant's employees, Dr. Marshall, Cromling v. Pittsburgh and Lake Erie R.R. Co., 327 F.2d 142 (3d Cir. 1963), Captain Rogers and Captain Woods, none of whom were called to testify.
The size of the liability verdict is not excessive. The plaintiff seaman, although handicapped by disease, was capable of earning $6,000 a year prior to his total disability in 1964.
He was 53 years old at trial (T., p. 105). The jury evidently believed upon sufficient evidence that his total disability was to some extent accelerated by the negligences of the defendant and that his earning power was prematurely completely extinguished. Had the plaintiff been permitted to introduce the mortality tables, the verdict may have been considerably enhanced (T., pp. 395-396). In addition to loss of earning power, plaintiff's pain, suffering and inconvenience were considerable.
In our opinion the evidence was sufficient to support the verdict of $6,745 for maintenance and cure.
We think that the charge related the important factual issues posed by the evidence to the law of maintenance and cure. Without doubt Andrews was in the service of the ship when the toe on his left foot was injured in May, 1962, and it was then that defendant was obligated to offer him prompt and adequate medical treatment and maintenance. This it wholly neglected to do. Had it been done, the defendant's doctors probably would have discovered, as they did later in August and September, the existence of the dangerous vascular disease and diabetes. From May, 1962, Andrews was entitled to maintenance until maximum cure. The jury was instructed to deduct the 4-week period when he received maintenance and to deduct the periods when he worked and when he was confined in the Veterans Administration hospitals at public expense.
These instructions may have been more favorable to the defendant than it had a right to expect. Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962). The rate of maintenance was not stipulated (T., p. 399) and we think a reasonable amount per week was permissible in the discretion of the jury in the light of the proof.
The plaintiff was entitled to maintenance until he was cured as far as possible. Under the evidence the date of maximum cure was a difficult question, but we think it was a question of fact for the jury to determine. There was evidence which established that plaintiff was cured of certain serious incidents of his vascular disease by care and treatment, and that certain curative medical techniques have helped him - whether such help was palliative or curative was for the jury to determine. Under the evidence we do not see how the court, without usurping the function of the jury, could say as of any specific date prior to trial that no further improvement in his condition could be expected. It seems certain that his underlying vascular disease is incurable but the duty of providing maintenance and cure extends to the time when no improvement in the condition of the seaman may be reasonably expected to result from nursing, care and medical treatment. In this case we think determination of that time was for the jury, and in that respect we think they were properly instructed. Cf. Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 110, 80 S. Ct. 173, 4 L. Ed. 2d 142 (1959). The verdict indicates that the jury fixed a time of maximum cure prior to the end of the trial (see f.nn. 8 and 9, supra).
An appropriate order will be entered.